The High Court has just said that straight de facto couples jointly can adopt a child. Great - now what about the rest of the community?

Two posts in a day on matters legal may stretch the patience, but given this previous post of mine on adoption matters I feel the need to comment on the High Court's just released decision in the delightfully named case Re: A.M.M. and K.J.O. (Anyone interested in reading it for themselves can get a PDF copy from here.)

The issue for the Court was fairly straightforward, if potentially controversial. A man and a woman who had lived in a stable de facto relationship for 10 years wished to jointly adopt a son whom the woman had conceived using donor sperm. Without such joint adoption, the mother is legally his mother, while her partner only can ever be the boy's "guardian" - not his full, legally recognised father. However, the Adoption Act 1955 only permits the joint adoption of a child by "two spouses". So, do a de facto couple count as "spouses" for the purpose of this enactment?

As there's been some contradictory rulings on this issue at the Family Court level, this case provided a chance for the High Court to make a definitive ruling. The choice before it was pretty simple:

(1): say "'spouse' only means people who are married, and nothing else" (which clearly is what Parliament thought back in 1955, when the Adoption Act first was enacted);

(2): say "as it would be unjustifiably discriminatory to let married couples jointly adopt and not let this de facto couple do so, we will read 'spouse' as including couples like the present applicants".

It should be noted that (2) is open to the Court as an option because of the New Zealand Bill of Rights Act 1990, s.6; plus the fact that the Attorney-General expressly accepted that preventing the present applicants from adopting unjustifiably breaches their right to be free from discrimination. So the Crown didn't try to provide any reason as to why the applicants shouldn't be allowed jointly to adopt the boy - other than to say that as this is what Parliament has said, then Parliament's word on the matter should be the end of the story (even if this unjustifiably breaches someone's rights).

Against this background and as a matter of justice, you'd have to think that if the applicants' claim was the only one at issue, the outcome would have been a pretty straightforward win for them. What complicated the Court's choice, however, are the potential downstream consequences of its decision. For if it says the present applicants (a man and a woman in a long term, loving relationship that they've chosen not to define as a "marriage") should be seen as "spouses", then why shouldn't couples (same sex or otherwise) who have chosen a civil union rather than a marriage be seen as "spouses", or same-sex couples in long term, loving de facto relationships also be seen as "spouses"?

In other words, if this pebble is kicked off the cliff, will an avalanche of claims follow? And won't the Court then be open to allegations that it is making judgment calls that are properly the domain of Parliament? I mean - just who rules here ... elected politicians or judges?

In the end, the Court (perhaps somewhat bravely) stared that challenge down and went with option (2). But in doing so, it tailored its decision as narrowly as possible, noting that it is (in effect) only good for people who are just like the applicants.

So people who've chosen civil unions rather than marriages cannot be "spouses" under the Adoption Act, because Parliament explicitly decided they couldn't be at the time civil unions were created. Same sex couples in stable, long term de facto relationships might be "spouses" under the Adoption Act - but the Court also said they might not be. That's a question for another court on another day.

(Incidentally, if that day should ever come, it will be very interesting to see whether the Attorney-General makes the same express concession as in this case - or will the Crown try to argue that discriminating against same-sex prospective adoptive couples is not in breach of the NZBORA? If so, how and why are the cases different? I'd hate to be the poor crown counsel who has to run that particular argument before a bench!)

So - the upshot is a win for the applicants (and, dare one say it, common sense). But if anything, it makes even more of a mess of our ridiculously out of date adoption laws. Because at present, you may apply jointly to adopt a child if:

You are a man and a woman in a "stable and committed" de facto relationship.

However, you may not apply jointly to adopt a child if:

You are a man and a woman, or a same sex couple, who have entered a Civil Union under the Civil Union Act 2004.

And you may be able to apply jointly to adopt a child if:

You are a same sex couple in a "stable and committed" de facto relationship - depending on what a future court may say ... which may depend on whether the Crown tries to argue you shouldn't be permitted to adopt.

If anyone thinks this makes any sense - well, good on you and I hope your medication works more effectively in the future. For anyone else - and I'm looking at the Government here, and Paula Bennett in particular - may I draw your attention to the Law Commission's invaluable report from 2000 on how to fix this particular mess.
Finally - a quick word of congratulations to my friend and colleague at VUW Law School, Claudia Geiringer, who argued the case before the High Court. I suspect she is one of the few lawyers in the country who could have got this result - to say nothing of having the bench admit its judgment is "less elegant[ ] than her submissions". Well done.

Comments (13)

I thought there might be a reading of the judgment that says Civil Union couples may be able to adopt, but only if they can show the relationship is stable. In other words, what they mean is that a civil union doesn't automatically qualify you to make an application (as marriage does). The thrust of the decision is that not being married doesn't rule you out. I know the no-civil-union language is fairly emphatic, but this seems a more sensible reading, if not a more natural one...

You're right that would make more sense - why should a civil union couple not be able to adopt jointly, but if they dissolve the union yet remain in a "stable and committed" de facto relationship they can do so?

Why did the crown decide to take this to court? If they were willing to concede that not allowing defacto couples to adopt violates BoRA then why couldn't they apply s.6 themselves and let the initials adopt without dragging it through court? it feels a bit unfair, given the difference in resources between the Crown and the initials.

Can we not say that the judges went as far as they could go, given Parliament's currently irrational approach to this issue? And that this is a clear judicial message that unless our MPs go about making some sense of this area, the courts will have to do it instead?

Chris,

I guess the Crown felt it needed to argue what it took to be Parliament's legislative intent. But given this decision, wouldn't it be nice to see the A-G issue a statement along the lines of "given the High Court's ruling on this matter, and the fact that there are no demonstrably justifiable grounds to discriminate between straight and same sex couples, the Crown accepts that same-sex de facto couples also may apply jointly to adopt a child."

"given the High Court's ruling on this matter, and the fact that there are no demonstrably justifiable grounds to discriminate between straight and same sex couples, the Crown accepts that same-sex de facto couples also may apply jointly to adopt a child."

Still has shades of a signing statement to me: We agree to this law, but interpret it in this way, which means the opposite of what you might think Parliament meant.

Wouldn't it be nicer if the statement ended with '... jointly to adopt a child. We will therefore be moving to amend the Adoption Act at the earliest opportunity.'

If the Government is prepared to do as you ask, it has no reason not to go a step futher. Unless, that is, that don't have the support of the House on this matter, in which case they shouldn't be doing it.

Oh yes - quite agree that the best and most legitimate response would be for the House to confront this head-on and do like the Law Commission (and Acting Principal Family Court Judge Paul von Dadelszen) urge ... change the flippin' law, already!

That said, and in the context of my response to Chris, what should the A-G (or, Crown Law, really) do if and when a test case for a same sex de facto couple wishing to jointly adopt comes before the Family Court? Should it try to fight the point - "sure, the High Court says de facto straights can adopt, but not de facto same sexes!" Or should it accept the NZBORA logic that if there's no demonstrably justifiable reason to discriminate between same sex and straight couples here, then the ruling in Re: A.M.M. and K.J.O. has to apply to them too (even if the Court itself wasn't prepared to come out and say that)?

Or is the difference between straight and same sex de factos not in whether there's a unjustifiable breach of the NZBORA right to be free from discrimination, but rather in whether a court can use s.6 the same way in both situations? In other words, the court can pretend Parliament really meant for straight de factos to be "spouses" (and therefore jointly adopt), but would have to assume that outright prejudice stops Parliament from wanting same sex de factos from being "spouses" (therefore they can't adopt jointly - the court has to fall back on s.4 to issue a de facto declaration of inconsistency)?

That actually might be the case - but it is pretty ugly to come out and say it in such plain terms!

This seems a bit silly really. The lynchpins of the Court's expanded interpretation are (a) "the traditional concept of the family unit" including a man and a woman, and (b) a committed and stable relationship. But the Court seems unwilling to accept a civil union certificate as evidence of that committed and stable relationship, due to Parliament's past inaction on an amendment that did not differentiate between same-sex and opposite-sex relationships.

Surely, once the first criterion is established -- that the relationship in question is a traditional family unit -- then any reason for rejecting a certificate of civil union (based on uncertainty of the partners' sex) is eliminated, and the certificate is sufficient evidence of relationship stability.

I guess this decision is a result of the Court's unwillingness to address such a contestable policy question any wider than the facts of the present case -- but that doesn't mean that the reasoning makes any more sense.

The Court considered that the sex of the people in the relationship was very important. It would not have highlighted it in Parliament's rejection (at [63]) of the proposed adoption amendment otherwise. As such, I don't think that this decision will aid the cause of gay adoption much at all, but perhaps it will make the gates rattle a little louder.

Nice to hear from you ... but why is Pundit playing second fiddle to bloody Elephants and the Law? Where are your priorities - not to mention university loyalties!

(BTW - you accidentally may have deleted your comment on Dean's site ... it's not showing up there.)

On the substance of what you say ... it may well play into my comment above about a court not feeling able to use s.6 in the same way where the applicants are same sex - purely for the reason that Parliament has recently displayed (an unjustifiable) prejudice against such potential adoptive parents. Which, you know, sort of sucks (to use a technical legal expression).